Best Practices for Drafting                          Social Media Policies                                                ...
Growth of Social NetworkingLinkedin: More than 135 million usersMy Space: More than 150 million usersTwitter: More than 20...
What Should be Covered in Your            Social Media Policy? Hiring and recruiting practices Electronic systems usages...
Use of Social Networking Sites      During Recruiting and InterviewingPerceived Benefits of CheckingApplicants’ Social Net...
Risks of Checking Applicants’ Social                    Networking Sites Mistaken identity Create exposure for violation...
Recommendations If Want To Check       Applicants’ Social Networking Profiles Be consistent Make job offers conditional...
Hazards/Liability Issues From Employee Posts:      Suits against employer and employee Trend toward finding employer liab...
Tort claims Defamation of the Company, other  employees, customers, etc. Harassment/discrimination claims Negligence ag...
Privacy torts Invasion of privacy False Light Publicity Public Disclosure Of Private FactsBest Practices for Drafting S...
Drafting an Effective and Enforceable               Social Media Policy: Goals        Assess the benefits of social media...
Drafting an Enforceable Policy: State Laws            Anti-discrimination Statutes            Workers’ Compensation Anti...
Drafting an Enforceable Policy:              Federal Laws on Electronic Privacy Stored Communications Act         -    Ex...
Drafting an Enforceable Policy:                      Federal Laws Occupational Safety and Health Act Title VII, ADA, ADE...
Drafting a Social Media Policy:                 Policy Considerations: the NLRAThis is an issue for unionized and non-unio...
Drafting a Social Media Policy:          Policy Considerations: the NLRASection 7 protects the rights of non-unionized  em...
Recent NLRB Decisions Where Found to Be Unlawful         -    Non-profit Discharges 5 Employees for              Facebook...
NLRB Decisions (cont.)         -    Ambulance service’s policy violated NLRA                 Employee was asked to write ...
NLRB Decisions (cont.)         -    Union violated Section 8(b)(1)(A) by posting              interrogation video on YouTu...
NLRB Decisions (cont.) Employers Policies Found to be Unlawful         -    2 Employers’ policies which prohibited       ...
NLRB Decisions (cont.)         -    Supermarket chain’s policy found to be              overbroad                 Board f...
NLRB Decisions (cont.) Where Termination found to be Not  Unlawful         -    Bar who terminated employee for          ...
NLRB Decisions (cont.)         -    Non-profit employee who made comments              about mentally disabled clients not...
NLRB Decisions (cont.) Employer’s Policy Restricting Contact with the  Media was lawful         -    Grocery store chain ...
Other Concerns:      Protection of Company Trade Secrets           and Proprietary Information Consider revising confiden...
Policy Drafting Checklist      Assess if employees should get permission from       someone in the company before using t...
Policy Drafting Checklist Tell employees what content is  prohibited Spell out consequences for violation  of policyBest...
Contact Information                Christina A. Stoneburner, Esq.                        973-994-7551               cstone...
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Social media policies_powerpoint_for_labor_and_workforce_development_in_review

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Considerations for Drafting Effective and Legally Enforceable Social Media Policies

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Social media policies_powerpoint_for_labor_and_workforce_development_in_review

  1. 1. Best Practices for Drafting Social Media Policies February 1, 2012 Presented by Christina A. Stoneburner, Esq.Best Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 1
  2. 2. Growth of Social NetworkingLinkedin: More than 135 million usersMy Space: More than 150 million usersTwitter: More than 200 million active usersFacebook: More than 500 million usersBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 2
  3. 3. What Should be Covered in Your Social Media Policy? Hiring and recruiting practices Electronic systems usages policies Harassment of co-workers Disparagement of the Company and Customers Confidentiality Agreements Who Owns the Social Media AccountBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 3
  4. 4. Use of Social Networking Sites During Recruiting and InterviewingPerceived Benefits of CheckingApplicants’ Social Networking Sites:Weed out undesirable applicantsVerify employment history and/or referencesObtain examples of applicant’s communicationskills, creativity, etc.Best Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 4
  5. 5. Risks of Checking Applicants’ Social Networking Sites Mistaken identity Create exposure for violation of state and federal discrimination claims Eliminate defenses to such claims May be considered a background checkBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 5
  6. 6. Recommendations If Want To Check Applicants’ Social Networking Profiles Be consistent Make job offers conditional Make a recordBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 6
  7. 7. Hazards/Liability Issues From Employee Posts: Suits against employer and employee Trend toward finding employer liability if employee accessed/sent information using company computer, conduct was job- related, and/or occurred during working hours. Employers who block access to a particular social networking site at work may be avoiding liability in some instances.Best Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 7
  8. 8. Tort claims Defamation of the Company, other employees, customers, etc. Harassment/discrimination claims Negligence against employer Infliction of emotional distress Best Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 8
  9. 9. Privacy torts Invasion of privacy False Light Publicity Public Disclosure Of Private FactsBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 9
  10. 10. Drafting an Effective and Enforceable Social Media Policy: Goals Assess the benefits of social media, and incorporate it into the policy Include reasonable restrictions designed to: - prevent disclosure of confidential company information and trade secrets, - prevent legal claims against employee and employer, - reinforce the organization’s other policies/codes of conduct, - control productivity, and - protect the image of company Assess how the policy will be enforced: - Actively vs. passivelyBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 10
  11. 11. Drafting an Enforceable Policy: State Laws Anti-discrimination Statutes Workers’ Compensation Anti-Retaliation Provisions State whistleblower laws, i.e. New Jersey Conscientious Employee Protection Act. Off duty laws:  NY Labor Law §201-d(1)(b) prohibits discrimination against employees based on engaging in “legal recreational” activities off work time.Best Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 11
  12. 12. Drafting an Enforceable Policy: Federal Laws on Electronic Privacy Stored Communications Act - Exception for “voluntary” disclosure Electronic Communications Privacy Act: applies to interception of information as it is being transmitted, not stored information Computer Fraud and Abuse Act - Applicable to federal computers and certain financial institutions or computer affecting interstate commerce - Makes it unlawful to access without authorization a protected computer - Patriot Act and Identity Theft Enforcement Act increased penalties for violating Act:  10 years for first offense and 20 years for second offense  Only general, not specific, intent to cause damage requiredBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 12
  13. 13. Drafting an Enforceable Policy: Federal Laws Occupational Safety and Health Act Title VII, ADA, ADEA anti-retaliation provisions Sarbanes Oxley (publicly-traded employers) National Labor Relations ActBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 13
  14. 14. Drafting a Social Media Policy: Policy Considerations: the NLRAThis is an issue for unionized and non-unionizedemployers.Policies often: Prohibit Employees from disparaging the company, itscompetitors or its employees Provide that violations can lead to disciplinary actionCaution Must Be Exercised Because of: Employee’s Section 7rights under the NLRABest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 14
  15. 15. Drafting a Social Media Policy: Policy Considerations: the NLRASection 7 protects the rights of non-unionized employees to discuss working conditionsSection 7 provides that employees shall have the right to:  Self organize,  Form, join or assist labor organizations,  Bargain collectively;  Engage in other concerted activities for collective bargaining or other mutual aid or protection; and  Refrain from any or all of the aboveBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 15
  16. 16. Recent NLRB Decisions Where Found to Be Unlawful - Non-profit Discharges 5 Employees for Facebook postings  Employee posted on Facebook that there were complaints of improper service filed by a co- worker  Employee requested other co-workers to help give evidence to Executive Director that complaints were not true  Employer had terminated employees for cyber- bullying other employeeBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 16
  17. 17. NLRB Decisions (cont.) - Ambulance service’s policy violated NLRA  Employee was asked to write an incident report concerning a customer complaint. Employee was denied union representative.  Employee posted on Facebook that supervisor was “scumbag” and other employees joined in  Challenged policy as being overbroad because it prohibited photos of employees without company permission and prohibited “rude” behavior  Stressed that there was no language indicating it was not meant to affect Section 7 activityBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 17
  18. 18. NLRB Decisions (cont.) - Union violated Section 8(b)(1)(A) by posting interrogation video on YouTube and Facebook  Union employees posed as inspectors and asked employees about illegal workers  Union employees demanded information about legal status and requested to see proof  Board held union had interfered with employee’s performance of non-union work  Threats to call immigration were unlawful coercionBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 18
  19. 19. NLRB Decisions (cont.) Employers Policies Found to be Unlawful - 2 Employers’ policies which prohibited speaking badly about employer were too broad  One policy prohibited “embarrassment, harassment, or defamation of the employer or would damage good will.  Another policy prohibited “inappropriate” comments  In both cases, focused on fact that terms could include lawful union activityBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 19
  20. 20. NLRB Decisions (cont.) - Supermarket chain’s policy found to be overbroad  Board found provision barring employees from pressuring another employee to “friend” them ok  Board took issue with policies that prohibited disclosure of “personal information” of other employees without their consent  Board also took issue with policy regarding no use of logos or photographs of store because may prohibit picture of picketing activityBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 20
  21. 21. NLRB Decisions (cont.) Where Termination found to be Not Unlawful - Bar who terminated employee for complaining about tipping policy  Employee posted comments about work to a relative complaining about tip policy and calling customers “rednecks”  Even though about a term or condition of employment, not concerted activity  No employee joined in on the comment and no employee discussion about the tip policyBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 21
  22. 22. NLRB Decisions (cont.) - Non-profit employee who made comments about mentally disabled clients not protected  Employee had conversation with friends about working in mental institution  Co-worker reported the incident to employer but did not participate in conversation  Found not to be concerted activity because did not discuss issue with co-workers  Did not address confidentiality concerns of employer in disclosing patient informationBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 22
  23. 23. NLRB Decisions (cont.) Employer’s Policy Restricting Contact with the Media was lawful - Grocery store chain prohibited employees from responding to media inquiries and employees were required to direct all inquiries to Public Affairs office - Employees were also prohibited from taking pictures in store or parking lot without permission - Interpreted the policy on cameras to prevent news cameras not individual camerasBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 23
  24. 24. Other Concerns: Protection of Company Trade Secrets and Proprietary Information Consider revising confidentiality agreements and policies Address Non-compete agreements Who owns the social media account? - PhoneDog v. KravitzBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 24
  25. 25. Policy Drafting Checklist Assess if employees should get permission from someone in the company before using these sites. Do not limit employees from talking about salaries or terms of conditions of employment. No expectation of privacy.Best Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 25
  26. 26. Policy Drafting Checklist Tell employees what content is prohibited Spell out consequences for violation of policyBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 26
  27. 27. Contact Information Christina A. Stoneburner, Esq. 973-994-7551 cstoneburner@foxrothschild.comBest Practices for Drafting Social Media Policies© 2012 Fox Rothschild LLP 27
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